Beltway Buzz, September 10, 2021

Administration to Mandate Vaccines for Federal and Private-Sector Employees. President Joe Biden this week dramatically ramped up his administration’s efforts to increase COVID-19 vaccination rates across the country.

• On September 9, 2021, the president issued an executive order requiring all executive branch employees to be vaccinated and another executive order that will likely result in a similar mandate for certain employees of federal contractors. Regarding the order applicable to federal contractors, most of the implementation details will be spelled out in forthcoming guidance from the Safer Federal Workforce Task Force. Leigh Nason has the details.
• Also on September 9, 2021, the president announced that the Occupational Safety and Health Administration would require private-sector employers with 100 or more employees to mandate vaccinations for their employees or engage in frequent testing. John Martin has the details.

House Begins Work on Potential Federal Employment Law Changes. Until this week, we have primarily been dealing with summary documents, fact sheets, and rumors of what will be contained in the congressional Democrats’ $3.5 trillion “Build Back Better” reconciliation package. But now, we actually have some draft legislative text to review. This week, both the House Committee on Ways and Means and the House Committee on Education and Labor released legislative text of their respective provisions of the budgetary reconciliation package. There is still a lot of process to go through, so all of this is subject to change, but the draft labor and employment policy provisions include the following proposals.

Federal Paid Leave (Ways and Means Committee)

• Creates a taxpayer-funded, 12-week paid family and medical leave benefit for all workers that would begin in July 2023 (there would be no phase-in period).
• Provides reimbursement for states continuing to operate qualifying preexisting paid leave laws, as well as for employers that sponsor or provide qualifying paid leave (which includes, in part, job protection for employees on leave).

Protecting the Right to Organize (PRO) Act and Other Labor Provisions (Education and Labor Committee)

• Enacts civil penalties of up to $50,000 for each unfair labor practice (ULP) committed by an employer (interestingly, the bill does not include such penalties for ULPs committed by labor unions) and up to $100,000 for certain repeat violations. The “public interest” is one of the statutory factors that the National Labor Relations Board (NLRB) would consider in assessing the penalty amount.
• Permits civil penalties to be assessed against individual directors or officers of an employer.
• Prohibits the following conduct via a similar civil penalty scheme without requiring the employer to cease the prohibited activity (presumably to track as closely as possible to rules limiting the scope of reconciliation bills to federal revenue and budget issues):
• • “promis[ing], threaten[ing], or tak[ing] any action” that would “permanently replace” striking employees, discriminate against employees for supporting or participating in a strike, or lock out employees;
  • misclassifying a worker as outside the scope of the definition of “employee” under the National Labor Relations Act (NLRA);
  • “requir[ing] or coerc[ing] an employee to attend or participate” in the “employer’s campaign activities”; or
  • requiring class action arbitration agreements.
• Appropriates $5 million for the “implementation of systems to conduct electronic voting for union representation elections.”

Wage and Hour, Child Labor, and Workplace Safety Issues (Education and Labor Committee)

• Increases fines on employers that repeatedly or willfully violate the minimum wage or overtime prescriptions from $1,100 to $20,740. The fines for unlawfully keeping employees’ tips would increase from $1,100 to $11,620. Civil penalties for violations of child labor prohibitions would also increase.
• Pursuant to the bill’s workplace safety provisions, the maximum penalty for a willful or repeat violation would increase from $70,000 (currently adjusted for inflation to $136,532) to $700,000, and the minimum penalty would increase from $5,000 (currently adjusted for inflation to $9,753) to $50,000. Caps on serious violations and failure to correct a violation would increase from $7,000 (currently adjusted for inflation to $13,653) to $70,000.

Retirement (Ways and Means Committee)

The bill would require employers with five or more employees that do not offer employer-sponsored retirement plans to automatically enroll their employees in individual retirement accounts (IRAs) or other automatic contribution plans or arrangements.

NLRB GC to Seek “Full Panoply of Remedies.” On September 8, 2021, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memorandum instructing regional directors to “request from the Board the full panoply of remedies available to ensure that victims of unlawful conduct are made whole for losses suffered as a result of unfair labor practices.” According to the memo, potential remedies include the following (most of which we relay verbatim):

For ULPs Committed During Organizing Drives

• “Union access (e.g., requiring an employer to provide a union with employee contact information, equal time to address employees if they are convened by their employer for a “captive audience” meeting about union representation, and reasonable access to an employer’s bulletin boards and all places where notices to employees are customarily posted)”
• “Reimbursement of organizational costs (e.g., requiring an employer to pay for organizational costs that a union incurs in a re-run election because the employer has engaged in unlawful conduct sufficiently egregious as to cause the results of the prior election to be set aside)”
• “Reading of the Notice to Employees and the Explanation of Rights to employees by a principal or, in the alternative, by a Board Agent, in the presence of supervisors and managers, with union representatives being permitted to attend all such readings”
• “Publication of the notice in newspapers and/or other forums (such as online publications and websites maintained by an employer, including social media websites), chosen by the Regional Director and paid for by the employer”
• “[R]equiring an employer to grant a Board Agent access to its facility and to produce records so that the agent can determine whether the employer has complied with posting, distribution, and mailing requirements”
• “Training of employees, including supervisors and managers, both current and new, on employees’ rights under the Act and/or compliance with the Board’s Orders (e.g., requiring an employer to provide such training, one time or ongoing, with an outline of the training submitted to the Agency in advance of what will be presented, or requiring that a Board Agent be permitted to conduct such training)”
• Requiring an employer to hire “a qualified applicant of the union’s choice in the event a discharged discriminatee is unable to return to work”

For ULPs Committed During Bargaining

• Mandated “[b]argaining schedules (e.g., requiring a respondent to bargain not less than twice a week, at least six hours per session, until an agreement or a bona fide impasse is reached)”
• “Submission of periodic progress reports to the Agency on the status of bargaining (e.g., requiring a respondent to submit sworn written reports to the Agency every 30 days, over the course of a specified period, showing in detail the nature and course of bargaining with the union and attaching any written communications between the parties with respect to such bargaining)”
• “12-month insulation periods, including extensions of the certification year … during which a union’s status as bargaining representative may not be challenged”
• “Reinstatement of unlawfully withdrawn bargaining proposals”
• “Reimbursement of collective-bargaining expenses (e.g., requiring a respondent to reimburse an opposing bargaining party for negotiation expenses incurred during the entire period in which it fails to bargain in good faith)”

Happy Birthday, CA. September 9, 2021, was California Admission Day—the date that celebrates the anniversary of California’s becoming the 31st state in 1850. Signed by President Millard Fillmore, An Act for the Admission of the State of California into the Union was one of five federal statutes contained in the Compromise of 1850. Crafted by senators Henry Clay, Daniel Webster, and Stephen A. Douglas, the Compromise of 1850 was an attempt to deal with U.S. expansion in the West and the growing dispute over slavery. On September 10, 1850, California’s first senators, John C. Frémont and William M. Gwin, were sworn in. One day after that, California’s first members of the House of Representatives, Edward Gilbert and George W. Wright, were sworn in. Today, California elects 53 members to the House of Representatives.